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MALCOLM, J.:This appeal presents the specific question of whether or not the defendants and appellants are guilty of alibel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province ofPampanga. Theappeal also submits the larger question of the attitude which the judiciary should take interpreting andenforcing the ibel aw in connection with the basic prerogatives of freedom of speech and press, and ofassembly and petition.

!or a better understanding, the facts in the present appeal are the first narrated in the order of theiroccurrence, then certain suggestive aspects relative to the rights of freedom of speech and press and ofassembly and petition are interpolated, then the facts are tested by these principles, and, finally, judgmentis rendered.

!irst, the facts. "n the latter part of #$#%, numerous citi&ens of the Province of Pampangaassembled, and prepared and signed a petition to the '(ecutive )ecretary through the lawoffice of *rossfield and +-rien, and five individuals signed affidavits, charging RomanPunsalan, justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance inoffice and asking for his removal. *rossfield and +-rien submitted this petition and theseaffidavits with a complaint to the '(ecutive )ecretary. The petition transmitted by theseattorneys was signed by thirtyfour citi&ens apparently of considerable standing, includingcouncilors and property owners /now the defendants0, and contained the statements set out in

the information as libelous. -riefly stated the specific charges against the justice of the peacewere.#. That !rancisca Polintan, desiring to make complaint against Mariano de los Reyes, visitedthe justice of the peace, who first told her that he would draw up complaint for P%1 afterwards hesaid he would take P2 which she paid1 also kept her in the house for four days as a servant andtook from her two chickens and twelve 3gandus134. That 5alentin )unga being interested in a case regarding land which was on trial before the

justice of the peace, went to see the justice of the peace to ascertain the result of the trial, andwas told by the justice of the peace that if he wished to win he must give him P%6. 7ot havingthis amount, )unga gave the justice nothing, and a few days later was informed that he had lostthe case. Returning again to the office of the justice of the peace in order to appeal, the justicetold him that he could still win if he would pay P%612. That eoncio 8uiambao, having filed a complaint for assault against four persons, on the day

of the trial the justice called him over to his house, where he secretly gave him /8uiambao0 P261and the complaint was thereupon shelved.The '(ecutive )ecretary referred the papers to the judge of first instance for the )eventh9udicial :istrict requesting investigation, proper action, and report. The justice of the peace wasnotified and denied the charges. The judge of first instance found the first count not proved andcounts 4 and 2 established. "n view of this result, the judge, the ;onorable Percy M. Moir, wasof the opinion 3that it must be, and it is hereby, recommended to the

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place justice of the peace of Macabebe and Masantol of this province, wrote, signed,and published a writing which was false, scandalous, malicious, defamatory, andlibelous against the justice of the peace Mr. Roman Punsalan )errano, in which writingappear among other things the following?That the justice of the peace, Mr. Roman Punsalan )errano, of this town of Macabebe,on account of the conduct observed by him heretofore, a conduct highly improper of theoffice which he holds, is found to be a public functionary who is absolutely unfair,eminently immoral and dangerous to the community, and consequently unworthy of theoffice.That this assertion of the undersigned is evidenced in a clear and positive manner byfacts so certain, so serious, and so denigrating which appear in the affidavits attachedhereto, and by other facts no less serious, but which the undersigned refrain from citingherein for the sake of brevity and in order not to bother too much the attention of your;onor and due to lack of sufficient proof to substantiate them.That should the higher authorities allow the said justice of the peace of this town tocontinue in his office, the protection of the rights and interests of its inhabitants will beillusory and utopic1 rights and interest solemnly guaranteed by the Philippine -ill ofRights, and justice in this town will not be administered in accordance with law.That on account of the wrongful discharge of his office and of his bad conducts as such

justice of the peace, previous to this time, some respectable citi&ens of this town of

Macabebe were compelled to present an administrative case against the said RomanPunsalan )errano before the judge of first instance of Pampanga, in which case therewere made against him various charges which were true and certain and of differentcharacters.That after the said administrative case was over, the said justice of the peace, far fromcharging his bad and despicable conduct, which has roused the indignation of this townof Macabebe, subsequently performed the acts abovementioned, as stated in theaffidavits herewith attached, as if intending to mock at the people and to show hismistaken valor and heroism.

=ll of this has been written and published by the accused with deliberate purpose ofattacking the virtue, honor, and reputation of the justice of the peace, Mr. RomanPunsalan )errano, and thus e(posing him to public hatred contempt, and ridicule. =llcontrary to law.

"t should be noted that the information omits paragraphs of the petition mentioning theinvestigation before the judge of first instance, the affidavits upon which based and concludingwords, 3To the '(ecutive )ecretary, through the office of *rossfield and +-rien.3The ;onorable Percy M. Moir found all the defendants, with the e(ception of !eli( !ernande&,9uan ). =lfonso, Restituto , #$#>, a motion for a new trial, the principal purpose ofwhich was to retire the objection interposed by the then counsel for the defendants to theadmission of '(hibit = consisting of the entire administrative proceedings. The trial court deniedthe motion. =ll the defendants, e(cept Melecio ). )abado and !ortunato Macalino appealedmaking the following assignments of error?#. The court erred in overruling the motion of the convicted defendants for a new trial.

4. The court erred in refusing to permit the defendants to retire the objection inadvertently interposed by their counsel to the admission in evidence of the expedienteadministrativo out of which the accusation in this case arose.2. The court erred in sustaining the objection of the prosecution to the introduction inevidence by the accused of the affidavits upon which the petition forming the basis of thelibelous charge was based.@. The court erred in not holding that the alleged libelous statement was unqualifiedlyprivileged.%. The court erred in assuming and impliedly holding that the burden was on thedefendants to show that the alleged libelous statements were true and free from malice.

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>. The court erred in not acquitting the defendants.A. The evidence adduced fails to show the guilt of the defendants beyond a reasonabledoubt. This is especially true of all the defendants, e(cept !elipe -ustos, :ionisioMallari, and 9ose T. Reyes.Be have thus far taken it for granted that all the proceedings, administrative and judicial, wereproperly before this court. =s a matter of fact counsel for defendants in the lower court made animprovident objection to the admission of the administrative proceedings on the ground that thesignatures were not identified and that the same was immaterial, which objection was partiallysustained by the trial court. 7otwithstanding this curious situation by reason of which theattorney for the defense attempted to destroy through his objection the very foundation for the

justification of his clients, we shall continue to consider all the proceedings as before us. 7otindicating specifically the reason for this action, let the following be stated? The administrativeproceedings were repeatedly mentioned during the trial. These proceedings were the basis ofthe accusation, the information, the evidence, and the judgment rendered. The prosecutioncannot be understood without knowledge of anterior action. 7othing more unjust could beimagined than to pick out certain words which standing by themselves and une(plained arelibelous and then by shutting off all knowledge of facts which would justify these words, toconvict the accused. The records in question are attached to the rollo, and either on the groundthat the attorneys for the defense retired the objection to the introduction of the administrativeproceedings by the prosecution, or that a new trial should have been had because under

section @4 of the *ode of *riminal Procedure 3a case may be reopened on account of errors atlaw committed at the trial,3 or because of the right of this court to call in such records as aresufficiently incorporated into the complaint and are essential to a determination of the case, orfinally, because of our conceded right to take judicial notice of official action in administrativecases and of judicial proceedings supplemental to the basis action, we e(amine the record asbefore us, containing not alone the trial for libel, but the proceedings previous to that trial givingrise to it. To this action, the

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of =ugust 4$, #$#>, in the nature of organic acts for the Philippines, continued this guaranty.The words quoted are not unfamiliar to students of *onstitutional aw, for they are thecounterpart of the first amendment to the *onstitution of the Dnited )tates, which the =mericanpeople demanded before giving their approval to the *onstitution.Be mention the foregoing facts only to deduce the position never to be forgotten for an instantthat the guaranties mentioned are part and parcel of the +rganic aw F of the *onstitution Fof the Philippine "slands.These paragraphs found in the Philippine -ill of Rights are not threadbare verbiage. Thelanguage carries with all the applicable jurisprudence of great 'nglish and =merican*onstitutional cases. /Eepner vs. D. ). G#$6@H, #$% D. )., #661 )erra vs. Mortiga G#$6AH, 46@ D.)., @A6.0 =nd what are these principlesI 5olumes would inadequately answer. -ut included arethe following?The interest of society and the maintenance of good government demand a full discussion ofpublic affairs. *ompletely liberty to comment on the conduct of public men is a scalpel in thecase of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Menin public life may suffer under a hostile and an unjust accusation1 the wound can be assuagedwith the balm of a clear conscience. = public officer must not be too thinskinned with referenceto comment upon his official acts. +nly thus can the intelligence and the dignity of the individualbe e(alted. +f course, criticism does not authori&e defamation. 7evertheless, as the individual isless than the )tate, so must e(pected criticism be born for the common good. Rising superior to

any official or set of officials, to the *hief of '(ecutive, to the egislature, to the 9udiciary F toany or all the agencies of

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to a person having a corresponding interest or duty, although it contained criminatorymatter which without this privilege would be slanderous and actionable. /;arrison vs.-ush, % '. and -., 2@@1 # 9ur.G7. ).H, K@>1 4% . 9. 8. -., 4%1 2 B. R., @A@1 K% '. *. .,2@@.0

= pertinent illustration of the application of qualified privilege is a complaint made in good faithand without malice in regard to the character or conduct of a public official when addressed toan officer or a board having some interest or duty in the matter. 'ven when the statements arefound to be false, if there is probable cause for belief in their truthfulness and the charge ismade in good faith, the mantle of privilege may still cover the mistake of the individual. -ut thestatements must be made under an honest sense of duty1 a selfseeking motive is destructive.Personal injury is not necessary. =ll persons have an interest in the pure and efficientadministration of justice and of public affairs. The duty under which a party is privileged issufficient if it is social or moral in its nature and this person in good faith believes he is acting inpursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere factthat the communication is made in intemperate terms. = further element of the law of privilegeconcerns the person to whom the complaint should be made. The rule is that if a party appliesto the wrong person through some natural and honest mistake as to the respective functions ofvarious officials such unintentional error will not take the case out of the privilege."n the usual case malice can be presumed from defamatory words. Privilege destroy thatpresumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home

to the defendant the e(istence of malice as the true motive of his conduct. !alsehood and theabsence of probable cause will amount to proof of malice. /)ee Bhite vs. 7icholls G#K@%H, 2;ow., 4>>.0

= privileged communication should not be subjected to microscopic e(amination to discovergrounds of malice or falsity. )uch e(cessive scrutiny would defeat the protection which the lawthrows over privileged communications. The ultimate test is that of bona fides. /)ee Bhite vs.7icholls G#K@%H, 2 ;ow., 4>>1 -radley vs. ;eath G#K2#H, #4 Pick. GMass.H, #>21 Eent vs. -ongart&G#KK%H, #% R. "., A41 )treet !oundations of egal iability, vol. #, pp. 26K, 26$1 7ewell, )landerand ibel, various citations1 4% *yc. pages 2K% et seq.0;aving ascertained the attitude which should be assumed relative to the basic rights of freedomof speech and press and of assembly and petition, having emphasi&ed the point that our ibelaw as a statute must be construed with reference to the guaranties of our +rganic aw, andhaving sketched the doctrine of privilege, we are in a position to test the facts of this case with

these principles."t is true that the particular words set out in the information, if said of a private person, might wellbe considered libelousper se. The charges might also under certain conceivable conditionsconvict one of a libel of a government official. =s a general rule words imputing to a judge or a

justice of the peace dishonesty or corruption or incapacity or misconduct touching him in hisoffice are actionable. -ut as suggested in the beginning we do not have present a simple caseof direct and vicious accusations published in the press, but of charges predicated on affidavitsmade to the proper official and thus qualifiedly privileged. '(press malice has not been provedby the prosecution. !urther, although the charges are probably not true as to the justice of thepeace, they were believed to be true by the petitioners.

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secs. 462 and 44$, in connection with the cases of D. ). vs. %, and of;arrison vs. -ush, % '. and -., 2@@, holding that where defendant was subject to removal by thesovereign, a communication to the )ecretary of )tate was privileged.0The present facts are further essentially different from those established in other cases in whichprivate individuals have been convicted of libels of public officials. Malice, traduction, falsehood,calumny, against the man and not the officer, have been the causes of the verdict of guilty. /)eeD. ). vs. )enado G#$6$H, #@ Phil., 22K, 22$1 D. ). vs. *ontreras G#$#4H, 42 Phil., %#21 D. ). vs.Montalvo G#$#%H, 4$ Phil., %$%.0The =ttorney$60. The 9ulio -ustos case, the =ttorney

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because of the great scandal that the clandestine marriage would provoke /t.s.n., vol. """, pp.##6%6>0. The following morning, the 'scaCo spouses sought priestly advice. !ather Reynessuggested a recelebration to validate what he believed to be an invalid marriage, from thestandpoint of the *hurch, due to the lack of authority from the =rchbishop or the parish priest forthe officiating chaplain to celebrate the marriage. The recelebration did not take place, becauseon 4> !ebruary #$@K Mamerto 'scaCo was handed by a maid, whose name he claims he doesnot remember, a letter purportedly coming from )an *arlos college students and disclosing anamorous relationship between Pastor Tenchave& and Pacita 7oel1 5icenta translated the letterto her father, and thereafter would not agree to a new marriage. 5icenta and Pastor met thatday in the house of Mrs. Pilar Mende&ona. Thereafter, 5icenta continued living with her parentswhile Pastor returned to his job in Manila. ;er letter of 44 March #$@K /'(h. 3M30, while stillsolicitous of her husbands welfare, was not as endearing as her previous letters when their lovewas aflame.5icenta was bred in *atholic ways but is of a changeable disposition, and Pastor knew it. )hefondly accepted her being called a 3jellyfish.3 )he was not prevented by her parents fromcommunicating with Pastor /'(h. 3#'scaCo30, but her letters became less frequent as the dayspassed. =s of 9une, #$@K the newlyweds were already estranged /'(h. 34'scaCo30. 5icentahad gone to 9imene&, Misamis +ccidental, to escape from the scandal that her marriage stirredin *ebu society. There, a lawyer filed for her a petition, drafted by then )enator 'mmanuelPelae&, to annul her marriage. )he did not sign the petition /'(h. 3-%30. The case was

dismissed without prejudice because of her nonappearance at the hearing /'(h. 3-@30.+n 4@ 9une #$%6, without informing her husband, she applied for a passport, indicating in herapplication that she was single, that her purpose was to study, and she was domiciled in *ebu*ity, and that she intended to return after two years. The application was approved, and she leftfor the Dnited )tates. +n 44 =ugust #$%6, she filed a verified complaint for divorce against theherein plaintiff in the )econd 9udicial :istrict *ourt of the )tate of 7evada in and for the *ountyof Bashoe, on the ground of 3e(treme cruelty, entirely mental in character.3 +n 4# +ctober#$%6, a decree of divorce, 3final and absolute3, was issued in open court by the said tribunal."n #$%# Mamerto and Mena 'scaCo filed a petition with the =rchbishop of *ebu to annul theirdaughters marriage to Pastor /'(h. 3:30. +n #6 )eptember #$%@, 5icenta sought papaldispensation of her marriage /'(h. 3:340.+n #2 )eptember #$%@, 5icenta married an =merican, Russell eo Moran, in 7evada. )he nowlives with him in *alifornia, and, by him, has begotten children. )he acquired =merican

citi&enship on K =ugust #$%K.-ut on 26 9uly #$%%, Tenchave& had initiated the proceedings at bar by a complaint in the *ourtof !irst "nstance of *ebu, and amended on 2# May #$%>, against 5icenta !. 'scaCo, herparents, Mamerto and Mena 'scaCo, whom he charged with having dissuaded and discouraged5icenta from joining her husband, and alienating her affections, and against the Roman *atholic*hurch, for having, through its :iocesan Tribunal, decreed the annulment of the marriage, andasked for legal separation and one million pesos in damages. 5icenta claimed a valid divorcefrom plaintiff and an equally valid marriage to her present husband, Russell eo Moran1 whileher parents denied that they had in any way influenced their daughters acts, andcounterclaimed for moral damages.The appealed judgment did not decree a legal separation, but freed the plaintiff from supportinghis wife and to acquire property to the e(clusion of his wife. "t allowed the counterclaim ofMamerto 'scaCo and Mena 'scaCo for moral and e(emplary damages and attorneys fees

against the plaintiffappellant, to the e(tent of P@%,666.66, and plaintiff resorted directly to this*ourt.The appellant ascribes, as errors of the trial court, the following?#. "n not declaring legal separation1 in not holding defendant 5icenta !. 'scaCo liable fordamages and in dismissing the complaint1.4. "n not holding the defendant parents Mamerto 'scano and the heirs of :oCa Mena'scaCo liable for damages1.2 "n holding the plaintiff liable for and requiring him to pay the damages to the defendantparents on their counterclaims1 and.@. "n dismissing the complaint and in denying the relief sought by the plaintiff.

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That on 4@ !ebruary #$@K the plaintiffappellant, Pastor Tenchave&, and the defendantappellee,5icenta 'scaCo, were validly married to each other, from the standpoint of our civillaw, is clearly established by the record before us. -oth parties were then above the age ofmajority, and otherwise qualified1 and both consented to the marriage, which was performed bya *atholic priest /army chaplain avares0 in the presence of competent witnesses. "t is nowhereshown that said priest was not duly authori&ed under civil law to solemni&e marriages.The chaplains alleged lack of ecclesiastical authori&ation from the parish priest and the+rdinary, as required by *anon law, is irrelevant in our civil law, not only because of theseparation of *hurch and )tate but also because =ct 2>#2 of the Philippine egislature /whichwas the marriage law in force at the time0 e(pressly provided that F)'*. #. Essential reuisites. 'ssential requisites for marriage are the legal capacity ofthe contracting parties and consent. /'mphasis supplied0The actual authority of the solemni&ing officer was thus only a formal requirement, and,therefore, not essential to give the marriage civil effects,2 and this is emphasi&ed by section 4Aof said marriage act, which provided the following?)'*. 4A. Failure to compl! "ith formal reuirements. 7o marriage shall be declaredinvalid because of the absence of one or several of the formal requirements of this =ct if,when it was performed, the spouses or one of them believed in good faith that theperson who solemni&ed the marriage was actually empowered to do so, and that themarriage was perfectly legal.

The good faith of all the parties to the marriage /and hence the validity of their marriage0 will bepresumed until the contrary is positively proved /ao vs. :ee Tim, @% Phil. A2$, A@%1 !ranciscovs. 9ason, >6 Phil. @@4, @@K0. "t is well to note here that in the case at bar, doubts as to theauthority of the solemni&ing priest arose only after the marriage, when 5icentas parentsconsulted !ather Reynes and the archbishop of *ebu. Moreover, the very act of 5icenta inabandoning her original action for annulment and subsequently suing for divorce implies anadmission that her marriage to plaintiff was valid and binding.:efendant 5icenta 'scaCo argues that when she contracted the marriage she was under theundue influence of Pacita 7oel, whom she charges to have been in conspiracy with appellantTenchave&. 'ven granting, for arguments sake, the truth of that contention, and assuming that5icentas consent was vitiated by fraud and undue influence, such vices did not render hermarriage ab initio void, but merely voidable, and the marriage remained valid until annulled by acompetent civil court. This was never done, and admittedly, 5icentas suit for annulment in the

*ourt of !irst "nstance of Misamis was dismissed for nonprosecution."t is equally clear from the record that the valid marriage between Pastor Tenchave& and5icenta 'scaCo remained subsisting and undissolved under Philippine law, notwithstanding thedecree of absolute divorce that the wife sought and obtained on 4# +ctober #$%6 from the)econd 9udicial :istrict *ourt of Bashoe *ounty, )tate of 7evada, on grounds of 3e(tremecruelty, entirely mental in character.3 =t the time the divorce decree was issued, 5icenta'scaCo, like her husband, was still a !ilipino citi&en.@ )he was then subject to Philippine law,and =rticle #% of the *ivil *ode of the Philippines /Rep. =ct 7o. 2K>0, already in force at thetime, e(pressly provided?aws relating to family rights and duties or to the status, condition and legal capacity ofpersons are binding upon the citi&ens of the Philippines, even though living abroad.The *ivil *ode of the Philippines, now in force, does not admit absolute divorce, uo ad vinculomatrimonii1 and in fact does not even use that term, to further emphasi&e its restrictive policy on

the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds ofadultery of the wife or concubinage of the husband /=ct 4A#60. "nstead of divorce, the present*ivil *ode only provides for le#al separation /Title "5, -ook #, =rts. $A to #6K0, and, even in thatcase, it e(pressly prescribes that 3the marriage bonds shall not be severed3 /=rt. #6>, subpar.#0.!or the Philippine courts to recogni&e and give recognition or effect to a foreign decree ofabsolute divorce betiveen !ilipino citi&ens could be a patent violation of the declared publicpolicy of the state, specially in view of the third paragraph of =rticle #A of the *ivil *ode thatprescribes the following?Prohibitive laws concerning persons, their acts or property, and those which have for

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their object public order, policy and good customs, shall not be rendered ineffective bylaws or judgments promulgated, or by determinations or conventions agreed upon in aforeign country.'ven more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, ineffect, give rise to an irritating and scandalous discrimination in favor of wealthy citi&ens, to thedetriment of those members of our polity whose means do not permit them to sojourn abroadand obtain absolute divorces outside the Philippines.!rom this point of view, it is irrelevant that appellant Pastor Tenchave& should have appeared inthe 7evada divorce court. Primarily because the policy of our law cannot be nullified by acts ofprivate parties /*ivil *ode,=rt. #A, jam quot.01 and additionally, because the mere appearance ofa nonresident consort cannot confer jurisdiction where the court originally had none /=rea vs.9avier, $% Phil. %A$0.!rom the preceding facts and considerations, there flows as a necessary consequence that inthis jurisdiction 5icenta 'scaCos divorce and second marriage are not entitled to recognition asvalid1 for her previous union to plaintiff Tenchave& must be declared to be e(istent andundissolved. "t follows, likewise, that her refusal to perform her wifely duties, and her denial ofconsortium and her desertion of her husband constitute in law a wrong caused through her fault,for which the husband is entitled to the corresponding indemnity /*ivil *ode, =rt. 4#A>0. 7eitheran unsubstantiated charge of deceit nor an anonymous letter charging immorality against thehusband constitute, contrary to her claim, adequate e(cuse. Bherefore, her marriage and

cohabitation with Russell eo Moran is technically 3intercourse with a person not her husband3from the standpoint of Philippine aw, and entitles plaintiffappellant Tenchave& to a decree of3legal separation under our law, on the basis of adultery3 /Revised Penal *ode, =rt. 2220.The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are inaccord with the previous doctrines and rulings of this court on the subject, particularly those thatwere rendered under our laws prior to the approval of the absolute divorce act /=ct 4A#6 of thePhilippine egislature0. =s a matter of legal history, our statutes did not recogni&e divorces avinculo before #$#A, when =ct 4A#6 became effective1 and the present *ivil *ode of thePhilippines, in disregarding absolute divorces, in effect merely reverted to the policies on thesubject prevailing before =ct 4A#6. The rulings, therefore, under the *ivil *ode of #KK$, prior tothe =ct abovementioned, are now, fully applicable. +f these, the decision in Ramire$ vs. %mur,@4 Phil. K%%, is of particular interest. )aid this *ourt in that case?

=s the divorce granted by the !rench *ourt must be ignored, it results that the marriage

of :r. Mory and eona *astro, celebrated in ondon in #$6%, could not legali&e theirrelations1 and the circumstance that they afterwards passed for husband and wife in)wit&erland until her death is wholly without legal significance. The claims of the verychildren to participate in the estate of )amuel -ishop must therefore be rejected. Theright to inherit is limited to legitimate, legitimated and acknowledged natural children.The children of adulterous relations are wholly e(cluded. The word 3descendants3 asused in =rticle $@# of the *ivil *ode cannot be interpreted to include illegitimates born ofadulterous relations. /'mphasis supplied0'(cept for the fact that the successional rights of the children, begotten from 5icentas marriageto eo Moran after the invalid divorce, are not involved in the case at bar, the %mur case isauthority for the proposition that such union is adulterous in this jurisdiction, and, therefore,

justifies an action for legal separation on the part of the innocent consort of the first marriage,that stands undissolved in Philippine law. "n not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person/whether divorced or not0 would depend on the territory where the question arises. =nomalies ofthis kind are not new in the Philippines, and the answer to them was given in &arretto vs.%on$ales, %K Phil. >>A?The hardship of the e(isting divorce laws in the Philippine "slands are well known to themembers of the egislature. "t is the duty of the *ourts to enforce the laws of divorce aswritten by egislature if they are constitutional. *ourts have no right to say that suchlaws are too strict or too liberal. /p. A40The appellants first assignment of error is, therefore, sustained.;owever, the plaintiffappellants charge that his wifes parents, :r. Mamerto 'scaCo and his

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wife, the late :oCa Mena 'scaCo, alienated the affections of their daughter and influenced herconduct toward her husband are not supported by credible evidence. The testimony of PastorTenchave& about the 'scaCos animosity toward him strikes us to be merely conjecture ande(aggeration, and are belied by Pastors own letters written before this suit was begun /'(h. 34'scaCo3 and 35icenta,3 Rec. on =pp., pp. 4A64A@0. "n these letters he e(pressly apologi&ed tothe defendants for 3misjudging them3 and for the 3great unhappiness3 caused by his 3impulsiveblunders3 and 3sinful pride,3 3effrontery and audacity3 GsicH. Plaintiff was admitted to the 'scaCohouse to visit and court 5icenta, and the record shows nothing to prove that he would not havebeen accepted to marry 5icente had he openly asked for her hand, as good manners andbreeding demanded. 'ven after learning of the clandestine marriage, and despite their shock atsuch une(pected event, the parents of 5icenta proposed and arranged that the marriage berecelebrated in strict conformity with the canons of their religion upon advice that the previousone was canonically defective. "f no recelebration of the marriage ceremony was had it was notdue to defendants Mamerto 'scaCo and his wife, but to the refusal of 5icenta to proceed with it.That the spouses 'scaCo did not seek to compel or induce their daughter to assent to therecelebration but respected her decision, or that they abided by her resolve, does not constitutein law an alienation of affections. 7either does the fact that 5icentas parents sent her moneywhile she was in the Dnited )tates1 for it was natural that they should not wish their daughter tolive in penury even if they did not concur in her decision to divorce Tenchave& /4A =m. 9ur. #26#240.

There is no evidence that the parents of 5icenta, out of improper motives, aided and abetted heroriginal suit for annulment, or her subsequent divorce1 she appears to have actedindependently, and being of age, she was entitled to judge what was best for her and ask thather decisions be respected. ;er parents, in so doing, certainly cannot be charged withalienation of affections in the absence of malice or unworthy motives, which have not beenshown, good faith being always presumed until the contrary is proved.)'*. %4$. Liabilit! of 'arents, %uardians or (in. F The law distinguishes between theright of a parent to interest himself in the marital affairs of his child and the absence ofrights in a stranger to intermeddle in such affairs. ;owever, such distinction between theliability of parents and that of strangers is only in regard to what will justify interference.

= parent isliable for alienation of affections resulting from his own malicious conduct, aswhere he wrongfully entices his son or daughter to leave his or her spouse, but he is notliable unless he acts maliciously, without justification and from unworthy motives. ;e is

not liable where he acts and advises his child in good faith with respect to his childsmarital relations in the interest of his child as he sees it, the marriage of his child notterminating his right and liberty to interest himself in, and be e(tremely solicitous for, hischilds welfare and happiness, even where his conduct and advice suggest or result inthe separation of the spouses or the obtaining of a divorce or annulment, or where heacts under mistake or misinformation, or where his advice or interference are indiscreetor unfortunate, although it has been held that the parent is liable for consequencesresulting from recklessness. ;e may in good faith take his child into his home and affordhim or her protection and support, so long as he has not maliciously enticed his childaway, or does not maliciously entice or cause him or her to stay away, from his or herspouse. This rule has more frequently been applied in the case of advice given to amarried daughter, but it is equally applicable in the case of advice given to a son.Plaintiff Tenchave&, in falsely charging 5icentas aged parents with racial or social

discrimination and with having e(erted efforts and pressured her to seek annulment anddivorce, unquestionably caused them unrest and an(iety, entitling them to recover damages.Bhile this suit may not have been impelled by actual malice, the charges were certainlyreckless in the face of the proven facts and circumstances. *ourt actions are not established forparties to give vent to their prejudices or spleen."n the assessment of the moral damages recoverable by appellant Pastor Tenchave& fromdefendant 5icente 'scaCo, it is proper to take into account, against his patently unreasonableclaim for a million pesos in damages, that /a0 the marriage was celebrated in secret, and itsfailure was not characteri&ed by publicity or undue humiliation on appellants part1 /b0 that theparties never lived together1 and /c0 that there is evidence that appellant had originally agreed to

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the annulment of the marriage, although such a promise was legally invalid, being against publicpolicy /cf. =rt. KK, *iv. *ode0. Bhile appellant is unable to remarry under our law, this fact is aconsequence of the indissoluble character of the union that appellant entered into voluntarilyand with open eyes rather than of her divorce and her second marriage. =ll told, we are of theopinion that appellant should recover P4%,666 only by way of moral damages and attorneysfees.Bith regard to the P@%,666 damages awarded to the defendants, :r. Mamerto 'scaCo andMena 'scaCo, by the court below, we opine that the same are e(cessive. Bhile the filing of thisunfounded suit must have wounded said defendants feelings and caused them an(iety, thesame could in no way have seriously injured their reputation, or otherwise prejudiced them,lawsuits having become a common occurrence in present society. Bhat is important, and hasbeen correctly established in the decision of the court below, is that said defendants were notguilty of any improper conduct in the whole deplorable affair. This *ourt, therefore, reduces thedamages awarded to P%,666 only.)umming up, the *ourt rules?/#0 That a foreign divorce between !ilipino citi&ens, sought and decreed after the effectivity ofthe present *ivil *ode /Rep. =ct 2K>0, is not entitled to recognition as valid in this jurisdiction1and neither is the marriage contracted with another party by the divorced consort, subsequentlyto the foreign decree of divorce, entitled to validity in the country1/40 That the remarriage of divorced wife and her cohabitation with a person other than the

lawful husband entitle the latter to a decree of legal separation conformably to Philippine law1/20 That the desertion and securing of an invalid divorce decree by one consort entitles the otherto recover damages1/@0 That an action for alienation of affections against the parents of one consort does not lie inthe absence of proof of malice or unworthy motives on their part.

B;'R'!+R', the decision under appeal is hereby modified as follows1/#0 =djudging plaintiffappellant Pastor Tenchave& entitled to a decree of legal separation fromdefendant 5icenta !. 'scaCo1/40 )entencing defendantappellee 5icenta 'scaCo to pay plaintiffappellant Tenchave& theamount of P4%,666 for damages and attorneys fees1/20 )entencing appellant Pastor Tenchave& to pay the appellee, Mamerto 'scaCo and theestate of his wife, the deceased Mena 'scaCo, P%,666 by way of damages and attorneys fees.

7either party to recover costs.&en#$on, C.J., &autista An#elo, Concepcion, )i$on, Re#ala, *a+alintal, &en#$on, J.'. andaldivar, JJ., concur.

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MELENCIO-HERRERA, J.:!or having bypassed a port of call without previous notice, petitioner shipping companyand the ship captain were sued for damages by four of its passengers, privaterespondents herein, before the then *ourt of !irst "nstance of *ebu, -ranch 5""",-riefly, the facts of record show that private respondents purchased first class ticketsfrom petitioner at the latters office in *ebu *ity. They were to board petitioners vessel,ML5 )weet per annum on the moral and e(emplary damages asset forth above from the date of this decision until said damages are fully paid1@0 P%,666.66 as attorneys fees1 and%0 The costs.*ounterclaim dismissed.The governing provisions are found in the *ode of *ommerce and read as follows?

=RT. >#@. = captain who, having agreed to make a voyage, fails to fulfill hisundertaking, without being prevented by fortuitous event or force majeure, shallindemnify all the losses which his failure may cause, without prejudice to criminalpenalties which may be proper.and

=RT. >$K. "n case of interruption of a voyage already begun, the passengers shall onlybe obliged to pay the fare in proportion to the distance covered, without right to recoverdamages if the interruption is due to fortuitous event or force majeure, but with a right toindemnity, if the interruption should have been caused by the captain e(clusively. "f theinterruption should be caused by the disability of the vessel, and the passenger shouldagree to wait for her repairs, he may not be required to pay any increased fare ofpassage, but his living e(penses during the delay shall be for his own account.The crucial factor then is the e(istence of a fortuitous event or force ma-eure. Bithout it,the right to damages and indemnity e(ists against a captain who fails to fulfill hisundertaking or where the interruption has been caused by the captain e(clusively.

=s found by both *ourts below, there was no fortuitous event or force ma-eure whichprevented the vessel from fulfilling its undertaking of taking private respondents to*atbalogan. "n the first place, mechanical defects in the carrier are not considered a

caso fortuito that e(empts the carrier from responsibility. 1"n the second place, even granting ar#uendo that the engine failure was a fortuitousevent, it accounted only for the delay in departure. Bhen the vessel finally left the portof *ebu on 9uly #6, #$A4, there was no longer any force ma-eure that justified bypassinga port of call. The vessel was completely repaired the following day after it wastowed back to *ebu. "n fact, after docking at Tacloban *ity, it left the ne(t day for Manilato complete its voyage. 2The reason for bypassing the port of *atbalogan, as admitted by petitioners

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passengers for *atbalogan, 3 so that the *atbalogan phase could be scrapped withouttoo much loss for the company."n defense, petitioner cannot rely on the conditions in small bold print at the back of theticket reading.The passengers acceptance of this ticket shall be considered as an acceptance of thefollowing conditions?2. "n case the vessel cannot continue or complete the trip for any cause whatsoever, thecarrier reserves the right to bring the passenger to hisLher destination at the e(pense ofthe carrier or to cancel the ticket and refund the passenger the value of hisLher ticket1((( ((( (((##. The sailing schedule of the vessel for which this ticket was issued is subject tochange without previous notice. /'(hibit 3l =30'ven assuming that those conditions are squarely applicable to the case at bar,petitioner did not comply with the same. "t did not cancel the ticket nor did it refund thevalue of the tickets to private respondents. -esides, it was not the vessels sailingschedule that was involved. Private respondents complaint is directed not at thedelayed departure the ne(t day but at the by passing of *atbalogan, their destination.;ad petitioner notified them previously, and offered to bring them to their destination atits e(pense, or refunded the value of the tickets purchased, perhaps, this controversywould not have arisen.

!urthermore, the conditions relied upon by petitioner cannot prevail over =rticles >#@and >$K of the *ode of *ommerce heretofore quoted.The voyage to *atbalogan was 3interrupted3 by the captain upon instruction ofmanagement. The 3interruption3 was not due to fortuitous event or for ma-eure nor todisability of the vessel. ;aving been caused by the captain upon instruction ofmanagement, the passengers right to indemnity is evident. The owner of a vessel andthe ship agent shall be civilly liable for the acts of the captain. 4Dnder =rticle 4446 of the *ivil *ode, moral damages are justly due in breaches ofcontract where the defendant acted fraudulently or in bad faith. -oth the Trial *ourt andthe =ppellate *ourt found that there was bad faith on the part of petitioner in that?/#0 :efendantsappellants did not give notice to plaintiffs appellees as to the change ofschedule of the vessel1/40 Enowing fully well that it would take no less than fifteen hours to effect the repairs of

the damaged engine, defendantsappellants instead made announcement of assurancethat the vessel would leave within a short period of time, and when plaintiffsappelleeswanted to leave the port and gave up the trip, defendantsappellants employees wouldcome and say, we are leaving, already./20 :efendantsappellants did not offer to refund plaintiffsappellees tickets nor providethem with transportation from Tacloban *ity to *atbalogan. 5That finding of bad faith is binding on us, since it is not the function of the *ourt toanaly&e and review evidence on this point all over again, 6 aside from the fact that wefind it faithful to the meaning of bad faith enunciated thus?-ad faith means a breach of a known duty through some motive or interest or illwill.)elfenrichment or fraternal interest, and not personal illwill may have been the motive,but it is malice nevertheless. 7Dnder the circumstances, however, we find the award of moral damages e(cessive and

accordingly reduce them to P2,666.66, respectively, for each of the private respondents.The total award of attorneys fees of P%,666.66 is in order considering that the case hasreached this Tribunal."nsofar as e(emplary damages are concerned, although there was bad faith, we are notinclined to grant them in addition to moral damages. '(emplary damages cannot berecovered as a matter of right1 the *ourt decides whether or not they should beadjudicated. 8 The objective to meet its schedule might have been called for, butpetitioner should have taken the necessary steps for the protection of its passengersunder its contract of carriage.

=rticle 44#%/40 of the *ivil *ode 9 invoked by petitioner is inapplicable herein. The harm

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done to private respondents outweighs any benefits they may have derived from beingtransported to Tacloban instead of being taken to *atbalogan, their destination and thevessels first port of call, pursuant to its normal schedule.

=**+R:"7

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of P@A,666.66 in #$>>, when the obligation to return it or the rings fell due, wasequivalent to about P42%,666.66 in #$K6 /and necessarily to an even higher amountnow in view of the continued reduction in the purchasing power of the peso0. =s theincrease ordered by the trial court /to P>%,666.66 on =ugust A, #$A#0 was a finding offact based on official figures, the *ourt of =ppeals was not justified in reversing thesame.The petitioner also argues that the award of moral and e(emplary damages by the trialcourt was entirely justified and should not have been disallowed by the respondentcourt. The reason is that there was sufficient showing that the private respondent hadacted with malice and in bad faith toward the petitioner who had trusted her.Thus, )antos misrepresented her agreements with the petitioner as contracts of salewhen the very language of the receipts she herself had written and signed clearly showsthat she was receiving the rings in trust from the petitioner, as later found in both thecriminal and civil cases. 7 )econd, she claimed she had made installment paymentsdirectly and personally to the petitioner during the period from =ugust #@ to 7ovember46, #$>>, and when this lie was e(posed with evidence that the petitioner was abroadduring that period, changed her testimony to make it appear that the alleged paymentshad been made when ;ahn was in the country. 8 "n fact, the finding of the trial court assustained by the respondent court was that she had made no payment at all at anytime. 9 Third, when )antos offered to return the solitaire ring to the petitioner, the latter

readily saw that it was not the same ring she had entrusted to the private respondent,who evidently wanted to foist another deception upon her. 10!or her part, the private respondent dismisses the claim for upward adjustment of theamount due and says =rticle #4%6 of the *ivil *ode is not applicable, there being noinflation or deflation. The *entral -ank statistics ;ahn invokes are hearsay andimmaterial. 7ot in point either is the case of ulueta v. 'an2American 3orld Air"a!s,3 11as cited by the petitioner, where the issue of inflation was not even raised. Moreover,the delay in the payment of the amount due was imputable not to her but to thepetitioner, who had unreasonably prevented her from discharging her obligation.

=s early as :ecember of #$>>, she says she had offered to return the marquisette ringto the petitioner but the petitioners lawyer, acting on her instructions, refused to acceptit and demanded the return also of the P2%,666.66 solitaire ring. 12 )he offered to payfor this other ring on installment but this offer was also rejected. 13=t the trial of the

criminal case against her, she brought the solitaire ring to prove that she had notdisposed of it, but the petitioner denied it was the ring she had delivered to the accused.14 )till later, she offered to pay for both rings on installment, but the offer was alsorejected without reason by the petitioner. 15 "n sum, it is the petitioner who has delayedpayment of the amount due and not the private respondent, who was ready to settle herobligation.The trial court cited no legal basis for the upward adjustment of the original amount duealthough the reason was presumably =rticle #4%6 of the *ivil *ode. Be agree with therespondent court that such adjustment was erroneous for, as e(plained by 9ustice)erafin M. *uevas /later a member of this *ourt0?Be, however, find the contention of appellant under her fifth assignment of error F thatthe lower court erred in applying the floating rate to the purely peso transaction F to bemeritorious.

"n this regard, =rticle #4%6 of the *ivil *ode provides F"n case an e(traordinary inflation or deflation of the currency stipulated shouldsupervene, the value of the currency at the time of the establishment of the obligationshould be the basis of payment, unless there is an agreement to the contrary.-y e(traordinary inflation or deflation of currency is understood to be any uncommondecrease or increase in the purchasing power of currency which the parties could nothave reasonably foreseen and which has been due to war and the effects thereof, orany unusual force majeure or fortuitous event. /*ivil *ode of the Philippines, :ean*apistrano, 5ol. """, p. #K>.0Dnder the circumstances, we do not find any legal justification in applying the socalled

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floating rate,3 since there has been no e(traordinary inflation3 of currency within themeaning of the aforequoted =rt. #4%6 of the *ivil *ode. 16The *ourt holds that, in determining the accountability of the private respondent, thetrial judge should have applied the following provisions of the *ivil *ode, as therespondent court apparently did?

=rt. 446$. "f the obligation consists in the payment of a sum of money, and the debtorincurs in delay, the indemnity for damages, there being no stipulation to the contrary,shall be the payment of the interest agreed upon, and in the absence of stipulation, thelegal interest, which is si( per cent per annum.

=rt. 44#6. "nterest may, in the discretion of the court, be allowed upon damagesawarded for breach of contract.

=rt. 44#4. "nterest due shall earn legal interest from the time it is judicially demanded,although the obligation may be silent upon this point.The *ourt notes, however, that the respondent court should also have imposed intereston the interest due on the principal amount of P@A,666.66, conformably to =rticle 44#4.The interest due started to earn interest from the date it was judicially demanded withthe filing of the complaint on 9anuary >,#$>A.

=s to the delay in the performance of the private respondents obligation, our ruling isthat it was caused by the private respondent herself and not the petitioner who had theright to demand performance in full of the formers obligation she had assumed under

their written agreement.The receipts composed and signed by )antos, which were offered as '(hibits = and -,read as follows?9une 4, #$>>Received from Mrs. etty ;ahn # ring solo diamond worth P#4,666 to be sold oncommission or to be return upon demand.9osie M. )antos 4>> =. del Mundo >Received from Mrs. etty ;ahn # ring solo diamond worth P2%,666 to be sold oncommission basis or to be return upon demand.9osie M. )antos 4>> =. del Mundo

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lack of scruples and conscientiousness on her part do not place her in a favorable lightunder the painstaking scrutiny of the *ourt. There is so much deviousness andcomple(ity in her testimony that does not invite the confidence of the *ourt. 18B;'R'!+R', the petition is partly , #$>A, and until full payment is made.*osts against the private respondent.)+ +R:'R':.Narvasa /Chairman0, %anca!co and *edialdea, JJ., concur.%ri4o2Auino, J., too+ no part.

U!IERREZ, JR., J.:This is a petition for review on certiorari of the decision of the *ourt of =ppeals dismissing for lackof merit the petition for certiorari filed therein.

=s factual background, we quote from the *ourt of =ppeals decision?The factual and procedural antecedents of this case may be briefly stated as follows?+n 9une 46, #$K2, privaterespondents filed a complaint before the Regional Trial *ourt ofaguna, -ranch OO"5, for rescission of contract and damages, alleging among others?#. ( ( (

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4. That on March 2#, #$A%, plaintiffs being the owners of a parcel of land situated at -arrio )an=ntonio, )an Pedro, aguna, entered into a contract denominated as :'': +! )=' B"T;M+RT, #$K@, petitioners filed a motion to disniiss complaint, alleging that?#. That plaintiffs are not entitled to the subsidiar! remedy of rescission because of the presenceof remedy of foreclosure in the )eed of Sale "ith *ort#a#e /=nne( 3=3, *omplaint014. That, assuming ar#uendo that rescission were a proper remedy, it is apparent in the face of the*omplaint that the plaintiffs failed to comply with the requirements of law, hence the rescissionwas ineffective, illegal, null and void, and invalid.

+n 9uly 4>, #$K@, privaterespondents filed their opposition to the above motion."n the meantime, on =ugust >, #$K@, petitioners formerly offered to pay privaterespondents allthe outstanding balance under the :eed of )ale with Mortgage, which offer was rejected byprivate respondents on =ugust A, #$K@.+n 7ovember 4>, #$K@, the respondent*ourt denied the motion to dismiss. The order reads?:efendants through counsel filed a )econd Motion to :ismiss dated 9uly 4@, #$K@ based on anaffirmative defense raised in their answer, that is, that the complaint fails to state a cause ofaction for rescission against defendants because /#0 F plaintiffs are not entitled to the subsidiaryremedy of rescission because of the presence of the remedy of foreclosure in the :eed of )alewith Mortgage /=nne( 3=3, *omplaint0 and /40 F assuming arguendo that rescission were aproper remedy, it is apparent from the face of the *omplaint that the plaintiffs failed to complywith the requirements of law, hence the rescission was ineffective, illegal, null and void, andinvalid.

=fter a careful perusal of the allegations of the complaint considered in the light of e(istingapplicable law and jurisprudence touching on the matters in issue, and mindful of the settled rulethat in a motion to dismiss grounded on lack of cause of action the allegations of the complaintmust be assumed to be true, the *ourt finds and holds that the motion to dismiss dated 9uly 4@,#$K@ filed by defendants lacks merit and therefore denied the same.)+ +R:'R':.+n 9anuary 2#, #$K%, petitioners filed a motion for reconsideration to which privaterespondentsfiled their opposition on !ebruary ##, #$K%. +n !ebruary #$, #$K%, petitioners filed their reply.+n March #2, #$K%, the respondent*ourt denied the motion for reconsideration. The order readsin part?((( ((( (((Perusing the grounds invoked by the defendants in their Motion for Reconsideration and Reply aswell as the objections raised by plaintiffs in their opposition, and it appearing that in its +rder

dated 7ovember 4>, #$K@, the *ourt has sufficiently, althou /sic0 succinctly stated its reason fordenying the motion to dismiss dated 9uly #>, #$K@, that is, for lack of merit, the *ourt finds nooverriding reason or justification from the grounds invoked in the said Motion for Reconsiderationfor it to reconsider, change, modify, or set aside its +rder dated 7ovember 4>, #$K@. The *ourtstill believes that the two /40 grounds invoked by defendants in their Motion to :ismiss dated 9uly#>, #$K@ are not meritorious when considered in the light of prevailing law and jurisprudence andthe hypothetically admitted allegations of the complaint, and for that reason it denied the motionto dismiss in its said order of 7ovember 4>, #$K@.The instant Motion for Reconsideration is therefore denied for lack of merit. /Pp, 4$24, Rollo0The questions raised by petitioner are as follows?

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""7 = :'': +! )=', B;"*; ") *+DP': B"T; = M+RT%%40IThe petition was denied in a minute resolution on 9une #2, #$K> but was given due course on)eptember 4$, #$K> on a motion for reconsideration.The petition is impressed with merit.The respondent court rejected the petitioners reliance on paragraph /;0 of the contract whichgrants to the vendors mortgagees the right to foreclose 3in the event of the failure of thevendeesmortgagorsto comply with any provisions of this mortgage.3 =ccording to the appellate court, thisstipulation merely recogni&es the right of the vendors to foreclose and reali&e on the mortgagebut does not preclude them from availing of other remedies under the law, such as rescission ofcontract and damages under =rticles ##$# and ##A6 of the *ivil *ode in relation to Republic =ct7o. >%%4.

The appellate court committed reversible error. =s will be e(plained later, =rt. ##$# on reciprocalobligations is not applicable under the facts of this case. Moreover, =rt. #2K2 of the *ivil *odeprovides?The action for rescission is subsidiary1 it cannot be instituted e(cept when the party sufferingdamage has no other legal means to obtain reparation for the same.The concurring opinion of 9ustice 9.-.. Reyes in 9niversal Food Corp. v. Court of Appeals /22)*R= 440 was cited by the appellate court."n that case, 9ustice 9.-.. Reyes e(plained?((( ((( (((... The rescission on account of breach of stipulations is not predicated on injury to economicinterests of the party plaintiff but on the breach of faith by the defendant, that violates thereciprocity between the parties. "t is not a subsidiary action, and =rticle ##$# may be scannedwithout disclosing anywhere that the action for rescission thereunder is subordinated to anything

other than the culpable breach of his obligations by the defendant. This rescission is a principalaction retaliatory in character, it being unjust that a party be held bound to fulfill his promiseswhen the other violates his. =s e(pressed in the old atin aphorism? :Non servanti fidem, non estfides servanda,: ;ence, the reparation of damages for the breach is purely secondary.+n the contrary, in the rescission by reason of lesion or economic prejudice, the cause of actionis subordinated to the e(istence of that prejudice, because it is the raison d ;etre as well as themeasure of the right to rescind. ;ence, where the defendant makes good the damages caused,the action cannot be maintained or continued, as e(pressly provided in =rticles #2K2 and #2K@.-ut the operation of these two articles is limited to the cases of rescission for lesion enumeratedin =rticle #2K# of the *ivil *ode of the Philippines, and does not apply to cases under =rticle

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##$#."t is probable that the petitioners confusion arose from the defective technique of the new *odethat terms both instances as 3rescission3 without distinctions between them1 unlike the previous)panish *ivil *ode of #KK$, that differentiated 3resolution3 for breach of stipulations from3rescission3 by reason of lesion or damage. -ut the terminological vagueness does not justifyconfusing one case with the other, considering the patent difference in causes and results ofeither action.

=ccording to the private respondents, the applicable law is =rticle ##$# of the *ivil *ode whichprovides?The power to rescind obligations is implied in reciprocal ones, in case one of the obligors shouldnot comply with what is incumbent upon him.The injured party may choose between the fulfilment and the rescission of the obligation, with thepayment of damages in either case. ;e may also seek rescission, even after he has chosenfulfiument, if the latter should become impossible.The court shall decree the rescission claimed, unless there be just cause authori&ing the fi(ing ofa period.This is understood to be without prejudice to the rights of third persons who have acquired thething, in accordance with articles #2K% and #2KK and the Mortgage aw.There is no dispute that the parties entered into a contract of sale as distinguished from acontract to sell.

-y the contract of sale, the vendor obligates himself to transfer the ownership of and to deliver adeterminate thing to the buyer, who in turn, is obligated to pay a price certain in money or itsequivalent /=rt. #@%K, *ivil *ode0. !rom the respondents own arguments, we note that they havefully complied with their part of the reciprocal obligation. =s a matter of fact, they have alreadyparted with the title as evidenced by the transfer certificate of title in the petitioners name as of9une 4A, #$A%.The buyer, in tum, fulfilled his end of the bargain when he e(ecuted the deed of mortgage. Thepayments on an installment basis secured by the e(ecution of a mortgage took the place of acash payment. "n other words, the relationship between the parties is no longer one of buyer andseller because the contract of sale has been perfected and consummated. "t is already one of amortgagor and a mortgagee. "n consideration of the petitionerspromise to pay on installmentbasis the sum they owe the respondents, the latter have accepted the mortgage as security forthe obligation.

The situation in this case is, therefore, different from that envisioned in the cited opinion of 9ustice9.-.. Reyes. The petitioners breach of obligations is not with respect to the perfected contract ofsale but in the obligations created by the mortgage contract. The remedy of rescission is not aprincipal action retaliatory in character but becomes a subsidiary one which by law is availableonly in the absence of any other legal remedy. /=rt. #2K@, *ivil *ode0.!oreclosure here is not only a remedy accorded by law but, as earlier stated, is a specificprovision found in the contract between the parties.The petitioners are correct in citing this *ourts ruling in 1illaruel v. an (in# /@2 Phil. 4%#0 wherewe )tated?

=t the outset it must be said that since the subjectmatter of the sale in question is real property, itdoes not come strictly within the provisions of article ##4@ of the *ivil *ode, but is rathersubjected to the stipulations agreed upon by the contracting parties and to the provisions of

=rticle #%6@ of the *ivil *ode.

The 3pacto comisorio3 of 3ley comisoria3 is nothing more than a condition subsequent of thecontract of purchase and sale. *onsidered carefully, it is the very condition subsequent that isalways attached to all bilateral obligations according to article ##4@1 e(cept that when applied toreal property it is not within the scope of said article ##4@, and it is subordinate to the stipulationsmade by the contracting parties and to the provisions of the article on which we are nowcommenting3 /article #%6@0. /Manresa, *ivil *ode, volume #6, page 4K>, second edition.07ow, in the contract of purchase and sale before us, the parties stipulated that the payment of thebalance of one thousand pesos /P#,6660 was guaranteed by the mortgage of the house that wassold. This agreement has the twofold effect of acknowledging indisputably that the sale had beenconsummated, so much so that the vendee was disposing of it by mortgaging it to the vendor,

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and of waiving thepacto comisorio, that is, the resolution of the sale in the event of failure to paythe one thousand pesos /P#,6660 such waiver being proved by the e(ecution of the mortgage toguarantee the payment, and in accord therewith the vendors adequate remedy, in case ofnonpayment, is the foreclosure of such mortgage. /at pp. 4%%4%>0.((( ((( (((There is, therefore, no cause for the resolution of the sale as prayed for by the plaintiff. ;is action,at all events, should have been one for the foreclosure of the mortgage, which is not the actionbrought in this case.

=rticle ##4@ of the *ivil *ode, as we have seen, is not applicable to this case. 7either is thedoctrine enunciated in the case of +cejo, Pere& N *o. v. "nternational -anking *orporation /2APhil. >2#0, which plaintiff alleges to be applicable, because that principle has reference to the saleof personal property. /at p. 4%A0The petitioners have offered to pay au past due accounts. *onsidering the lower purchasingvalue of the peso in terms of prices of real estate today, the respondents are correct in statingthey have suffered losses. ;owever, they are also to blame for trusting persons who could not orwould not comply with their obligations in time. They could have foreclosed on the mortgageimmediately when it fell due instead of waiting all these years while trying to enforce the wrongremedy.B;'R'!+R', the petition is hereby

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able to take down petitioners car plate number. The police arrived shortly thereafter atthe scene of the shooting and there retrieved an empty shell and one round of liveammunition for a $ mm caliber pistol. 5erification at the and Transportation +fficeshowed that the car was registered to one 'lsa =ng 9uly #$$#, the Prosecutor filed with the Regional Trial *ourt a motion for leave toconduct preliminary investigation 8 and prayed that in the meantime all proceedings inthe court be suspended. ;e stated that petitioner had filed before the +ffice of theProvincial Prosecutor of Ri&al an omnibus motion for immediate release and preliminaryinvestigation, which motion had been granted by Provincial Prosecutor Mauro *astro,

who also agreed to recommend cash bail of P#66,666.66. The Prosecutor attached tothe motion for leave a copy of petitioners omnibus motion of ## 9uly #$$#.=lso on #> 9uly #$$#, the trial court issued an +rder 9 granting leave to conductpreliminary investigation and cancelling the arraignment set for #% =ugust #$$# untilafter the prosecution shall have concluded its preliminary investigation.+n #A 9uly #$$#, however, respondent 9udge motu proprio issued an +rder, 10embodying the following? /#0 the #4 9uly #$$# +rder which granted bail was recalled1petitioner was given @K hours from receipt of the +rder to surrender himself1 /40 the #>9uly #$$# +rder which granted leave to the prosecutor to conduct preliminaryinvestigation was recalled and cancelled1 /20 petitioners omnibus motion for immediate

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release and preliminary investigation dated ## 9uly #$$# was treated as a petition forbail and set for hearing on 42 9uly #$$#.+n #$ 9uly #$$#, petitioner filed a petition for certiorari, prohibition and mandamusbefore the )upreme *ourt assailing the #A 9uly #$$# +rder, contending that theinformation was null and void because no preliminary investigation had been previouslyconducted, in violation of his right to due process. Petitioner also moved for suspensionof all proceedings in the case pending resolution by the )upreme *ourt of his petition1this motion was, however, denied by respondent 9udge.+n 42 9uly #$$#, petitioner surrendered to the police.-y a Resolution dated 4@ 9uly #$$#, this *ourt remanded the petition for certiorari,prohibition and mandamus to the *ourt of =ppeals.+n #> =ugust #$$#, respondent 9udge issued an order in open court setting thearraignment of petitioner on 42 =ugust #$$#.+n #$ =ugust #$$#, petitioner filed with the *ourt of =ppeals a motion to restrain hisarraignment.+n 42 =ugust #$$#, respondent judge issued a *ommitment +rder directing theProvincial Barden of Ri&al to admit petitioner into his custody at the Ri&al Provincial9ail. +n the same date, petitioner was arraigned. "n view, however, of his refusal toenter a plea, the trial court entered for him a plea of not guilty. The Trial court then setthe criminal case for continuous hearings on #$, 4@ and 4> )eptember1 on 4, 2, ## and

#A +ctober1 and on A, K, #@, #%, 4# and 44 7ovember #$$#. 11+n 4A =ugust #$$#, petitioner filed a petition for habeas corpus 12 in the *ourt of

=ppeals. ;e alleged that in view of public respondents failure to join issues in thepetition for certiorari earlier filed by him, after the lapse of more than a month, thusprolonging his detention, he was entitled to be released on habeas corpus.+n 26 =ugust #$$#, the *ourt of =ppeals issued the writ of habeas corpus. 13 Thepetition for certiorari, prohibition and mandamus, on the one hand, and the petition forhabeas corpus, upon the other, were subsequently consolidated in the *ourt of

=ppeals.The *ourt of =ppeals, on 4 )eptember #$$#, issued a resolution denying petitionersmotion to restrain his arraignment on the ground that that motion had become moot andacademic.+n #$ )eptember #$$#, trial of the criminal case commenced and the prosecution

presented its first witness.+n 42 )eptember #$$#, the *ourt of =ppeals rendered a consolidated decision 14dismissing the two /40 petitions, on the following grounds?a. Petitioners warrantless arrest was valid because the offense for which he wasarrested and charged had been 3freshly committed.3 ;is identity had been establishedthrough investigation. =t the time he showed up at the police station, there had been ane(isting manhunt for him. :uring the confrontation at the )an 9uan Police )tation, onewitness positively identified petitioner as the culprit.b. Petitioners act of posting bail constituted waiver of any irregularity attending hisarrest. ;e waived his right to preliminary investigation by not invoking it properly andseasonably under the Rules.c. The trial court did not abuse its discretion when it issued the #A 9uly #$$# +rderbecause the trial court had the inherent power to amend and control its processes so as

to make them conformable to law and justice.d. )ince there was a valid information for murder against petitioner and a validcommitment order /issued by the trial judge after petitioner surrendered to theauthorities whereby petitioner was given to the custody of the Provincial Barden0, thepetition for habeas corpus could not be granted.+n 2 +ctober #$$#, the prosecution presented three /20 more witnesses at the trial.*ounsel for petitioner also filed a 3Bithdrawal of =ppearance3 15 with the trial court, withpetitioners conformity.+n @ +ctober #$$#, the present Petition for Review on Certiorari was filed. +n #@+ctober #$$#, the *ourt issued a Resolution directing respondent 9udge to hold in

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abeyance the hearing of the criminal case below until further orders from this *ourt."n this Petition for Review, two /40 principal issues need to be addressed? first, whetheror not a lawful warrantless arrest had been effected by the )an 9uan Police in respect ofpetitioner 0 days after the shooting of Maguan. The 3arresting3officers obviously were not present, within the meaning of )ection %/a0, at the timepetitioner had allegedly shot Maguan. 7either could the 3arrest3 effected si( />0 daysafter the shooting be reasonably regarded as effected 3when Gthe shooting hadH in fact

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just been committed3 within the meaning of )ection %/b0. Moreover, none of the3arresting3 officers had any 3personal knowledge3 of facts indicating that petitioner wasthe gunman who had shot Maguan. The information upon which the police acted hadbeen derived from statements made by alleged eyewitnesses to the shooting F onestated that petitioner was the gunman1 another was able to take down the allegedgunmans cars plate number which turned out to be registered in petitioners wifesname. That information did not, however, constitute 3personal knowledge.3 18"t is thus clear to the *ourt that there was no lawful warrantless arrest of petitionerwithin the meaning of )ection % of Rule ##2. "t is clear too that )ection A of Rule ##4,which provides?)ec. A 3hen accused la"full! arrested "ithout "arrant. F 3hen a person is la"full!arrested "ithout a "arrant for an offense co#ni$able b! the Re#ional rial Court thecomplaint or information may be filed by the offended party, peace officer or fiscalwithout a preliminary investigation having been first conducted, on the basis of theaffidavit of the offended party or arresting office or person;owever, before the filin# of such complaint or information, the person arrested ma!as+ for a preliminar! investi#ation b! a proper officer in accordance with this Rule, buthe must sign a waiver of the provisions of =rticle #4% of the Revised Penal *ode, asamended, with the assistance of a lawyer and in case of nonavailability of a lawyer, aresponsible person of his choice. Not"ithstandin# such "aiver, he ma! appl! for bail as

provided in the corresponding rule and the investigation must be terminated withinfifteen /#%0 days from its inception.

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The preliminary investigation conducted by the fiscal for the purpose of determiningwhether aprima facie case e(ists to warranting the prosecution of the accused isterminated upon the filing of the information in the proper court. "n turn, as above stated,the filin# of said information sets in motion the criminal action a#ainst the accused inCourt. Should the fiscal find it proper to conduct a reinvesti#ation of the case, at suchsta#e, the permission of the Court must be secured.After such reinvesti#ation thefindin# and recommendations of the fiscal should be submitted to the Court forappropriate action. Bhile it is true that the fiscal has the uasi2-udicial discretion todetermine whether or not a criminal case should be filed in court or not, once the casehad already been brought to *ourt whatever disposition the fiscal may feel should beproper in the case thereafter should be addressed for the consideration of the *ourt.The only qualification is that the action of the *ourt must not impair the substantialrights of the accused., or the right of the People to due process of law.((( ((( (((The rule therefore in this jurisdiction is that once a complaint or information is filed inCourt an! disposition of the case ?such@ as its dismissal or the conviction or acuittal ofthe accused rests in the sound discretion of the Court. =lthough the fiscal retains thedirection and control of the prosecution of criminal cases even while the case is alreadyin *ourt he cannot impose his opinion on the trial court. The *ourt is the best and sole

judge on what to do with the case before it. . . . 20 /*itations omitted1 emphasis supplied0

7onetheless, since petitioner in his omnibus motion was asking for preliminaryinvestigation and not for a reinvestigation /*respo v. Mogul involved a re2investi#ation0,and since the Prosecutor himself did file with the trial court, on the %th day after filing theinformation for murder, a motion for leave to conduct preliminary investigation /attachingto his motion a copy of petitioners omnibus motion0, we conclude that petitionersomnibus motion was in effect filed with the trial court. Bhat was crystal clear was thatpetitioner did ask for a preliminary investigation on the very day that the information wasfiled without such preliminary investigation, and that the trial court was five /%0 days laterapprised of the desire of the petitioner for such preliminary investigation. !inally, the trialcourt did in fact grant the Prosecutors prayer for leave to conduct preliminaryinvestigation. Thus, even on the /mistaken0 supposition apparently made by theProsecutor that )ection A of Rule ##4 of the Revised *ourt was applicable, the %dayreglementary period in )ection A, Rule ##4 must be held to have been substantially

complied with.Be believe and so hold that petitioner did not waive his right to a preliminaryinvestigation. Bhile that right is statutory rather than constitutional in its fundament,since it has in fact been established by statute, it is a component part of due process incriminal justice. 21 The right to have a preliminary investigation conducted before beingbound over to trial for a criminal offense and hence formally at risk of incarceration orsome other penalty, is not a mere formal or technical right1 it is a substantive right. Theaccused in a criminal trial is inevitably e(posed to prolonged an(iety, aggravation,humiliation, not to speak of e(pense1 the right to an opportunity to avoid a processpainful to any one save, perhaps, to hardened criminals, is a valuable right. To denypetitioners claim to a preliminary investigation would be to deprive him the full measureof his right to due process.The question may be raised whether petitioner still retains his right to a preliminary

investigation in the instant case considering that he was already arraigned on 42 =ugust#$$#. The rule is that the right to preliminary investigation is waived when the accusedfails to invoke it before or at the time of enterin# a plea at arraignment. 22 "n the instantcase, petitioner

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immediately after their arrest, they filed bail and proceeded to trial 3"ithout previousl!claimin# that the! did not have the benefit of a preliminar! investi#ation.3 24 "n theinstant case, petitioner

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"n respect of the matter of bail, we similarly believe and so hold that petitioner remainsentitled to be released on bail as a matter of right. )hould the evidence already ofrecord concerning petitioners guilt be, in the reasonable belief of the Prosecutor, strong,the Prosecutor may move in the trial court for cancellation of petitioners bail. "t wouldthen be up to the trial court, after a careful and objective assessment of the evidence onrecord, to grant or deny the motion for cancellation of bail.To reach any other conclusions here, that is, to hold that petitioners rights to apreliminary investigation and to bail were effectively obliterated by evidencesubsequently admitted into the record would be to legitimi&e the deprivation of dueprocess and to permit the

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"t is faced with the reconciliation of two values esteemed highly and cherished dearly in aconstitutional democracy. +ne is the freedom of belief and of e(pression availed of by an individualwhether by himself alone or in association with others of similar persuasion, a goal that occupies a placeand to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by aprohibition of the early nomination of candidates and the limitation of the period of election campaign orpartisan political activity, with the hope that the timeconsuming efforts, entailing huge e(penditures offunds and involving the risk of bitter rivalries that may end in violence, to paraphrase the e(planatory noteof the challenged legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. Toparaphrase a landmark opinion, # when we act in these matters we do so not on the assumption that tous is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannotescape under the *onstitution, one that history authenticates, to pass upon every assertion of an allegedinfringement of liberty, when our competence is appropriately invoked.

This then is the crucial question? "s there an infringement of libertyI Petitioners so alleged in hisaction, which they entitled :eclaratory Relief with Preliminary "njunction, filed on 9uly 44, #$>A, aproceeding that should have been started in the of *ourt of !irst "nstance but treated by this *ourt as oneof prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners

challenged the validity of two new sections now included in the Revised 'lection *ode, under Republic=ct 7o. @KK6, which was approved and took effect on 9une #A, #$>A, prohibiting the too early nominationof candidates 4 and limiting the period of election campaign or partisan political activity. 2

The terms 3candidate3 and 3election campaign3 or 3partisan political activity3 are likewise defined.The former according to =ct 7o. @KK6 3refers to any person aspiring for or seeking an elective publicoffice regarded of whether or not said person has already filed his certificate of candidacy or has beennominated by any political party as its candidate.3 3'lection campaign3 or 3partisan political activity3 refersto acts designed to have a candidate elected or not or promote the candidacy of a person or persons to apublic office.3 Then the acts were specified. There is a proviso that simple e(pression of opinion andthoughts concerning the election shall not be considered as part of an election campaign. There is thefurther proviso that nothing stated in the =ct 3shall be understood to prevent any person from e(pressinghis views on current political problems or issues, or from mentioning the names of the candidates for

public office whom he supports.3 @

Petitioner *abigao was, at the time of the filing >f the petition, an incumbent councilor in the @th:istrict of Manila and the 7acionalista Party official candidate for 5iceMayor of Manila to which he wassubsequently elected on 7ovember ##, #$>A1 petitioner

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To the plea of petitioners that after hearing, Republic =ct 7o. @KK6 be declared unconstitutional,null and void, respondent *ommission on 'lections, in its answer filed on =ugust #, #$>A, after denyingthe allegations as to the validity of the act 3for being mere conclusions of law, erroneous at that,3 andsetting forth special affirmative defenses, procedural and substantive character, would have this *ourtdismiss the petition.

Thereafter the case was set for hearing on =ugust 2, #$>A. +n the same date a resolution waspassed by us to the following effect? 3=t the hearing of case 4AK22 /=rsenio K, this *ourt,by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validityof R.=. =ct 7o. @KK6. The Philippine -ar =ssociation, the *ivil iberties Dnion, the D.P. aw *enter andthe D.P. Bomen awyers *ircle were included, among them. They did file their respective memorandawith this *ourt and aided it in the consideration of the constitutional issues involved.

#. "n the course of the deliberations, a serious procedural objection was raised by five members of

the *ourt. > "t is their view that respondent *ommission on 'lections not being sought to be restrainedfrom performing any specific act, this suit cannot be characteri&ed as other than a mere request for anadvisory opinion. )uch a view, from the remedial law standpoint, has much to recommend it.7onetheless, a majority would affirm, the original stand that under the circumstances it could still rightfullybe treated as a petition for prohibition.

The language of 9ustice aurel fits the case 3=ll await the decision of this *ourt on theconstitutional question. *onsidering, therefore, the importance which the instant case has assumed andto prevent multiplicity of suits, strong reasons of public policy demand that GitsH constitutionality ... be nowresolved.3 A "t may likewise be added that the e(ceptional character of the situation that confronts us, the

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paramount public interest, and the undeniable necessity for a ruling, the national elections being, barelysi( months away, reinforce our stand.

"t would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdictionto prevent the enforcement of an alleged unconstitutional statute. Be are left with no choice then1 wemust act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. "t is not insuperable. "t istrue that ordinarily, a party who impugns the validity of a statute or ordinance must have a substantialinterest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.K Respondent cannot see such interest as being possessed by petitioners. "t may indicate the clarity ofvision being dimmed, considering that one of the petitioners was a candidate for an elective position.'ven if such were the case, however, the objection is not necessarily fatal. "n this jurisdiction, the rule hasbeen sufficiently rela(ed to allow a ta(payer to bring an action to restrain the e(penditure of public fundsthrough the enforcement of an invalid or unconstitutional legislative measure. $

4. "n the answer of the respondent as well as its memorandum, stress was laid on Republic =ct 7o.@KK6 as an e(ercise of the police power of the state, designed to insure a free, orderly and honestelection by regulating 3conduct which *ongress has determined harmful if unstrained and carried for along period before elections it necessarily entails huge e(penditures of funds on the part of the

candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflictsdireful consequences upon public interest as the vital affairs of the country are sacrificed to purelypartisan pursuits.3 'vidently for respondent that would suffice to meet the constitutional questions raisedas to the alleged infringement of free speech, free press, freedom of assembly and freedom ofassociation. Bould it were as simple as thatI

=n eloquent e(cerpt from a leading =merican decision #6 admonishes though against such acavalier approach. 3The case confronts us again with the duty our system places on this *ourt to saywhere the individuals, freedom ends the )tates power begins. *hoice on that border, now as alwaysdelicate, is perhaps more so where the usual. presumption supporting legislation is balanced by thepreferred place given in our scheme to the great, the indispensable democratic freedoms secured by the!irst =mendment.... That priority gives these liberties a sanctity and a sanction not permitting dubiousintrusions. =nd it is the character of the right, not of the limitation, which determines what standard

governs the choice...3

'ven a leading =merican )tate court decision on a regulatory measure dealing with elections, citedin the answer of respondent, militates against a stand minimi&ing the importance and significance of thealleged violation of individual rights? 3=s so construed by us, it has not been made to appear that sectionK#K$, *omp.

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action for damages, #A or contempt proceedings #K unless there be a clear and present danger ofsubstantive evil that *ongress has a right to prevent.

The vital need in a constitutional democracy for freedom of e(pression is undeniable whether as ameans of assuring individual selffulfillment, of attaining the truth, of assuring participation by the peoplein social including political decisionmaking, and of maintaining the balance between stability and change.#$ The trend as reflected in Philippine and =merican decisions is to recogni&e the broadcast scope andassure the widest latitude to this constitutional guaranty. "t represents a profound commitment to theprinciple that debate of public issue should be uninhibited, robust, and wideopen. 46 "t is not going toofar, according to another =merican decision, to view the function of free speech as inviting dispute. 3"tmay indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction withconditions as they are, or even stirs people to anger.3 4# !reedom of speech and of the press thus meanssomething more than the right to approve e(isting political beliefs or economic arrangements, to lendsupport to official measures, to take refuge in the e(isting climate of opinion on any matter of publicconsequence. )o atrophied, the right becomes meaningless. The right belongs as well, if not more, forthose who question, who do not conform, who differ. To paraphrase 9ustice ;olmes, it is freedom for thethought that we hate, no less than for the thought that agrees with us. 44

)o with 'merson one may conclude that 3the theory of freedom of e(pression involves more than atechnique for arriving at better social judgments through democratic procedures. "t comprehends a vision

of society, a faith and a whole way of life. The theory grew out of an age that was awakened andinvigorated by the idea of new society in which mans mind was free, his fate determined by his ownpowers of reason, and his prospects of creating a rational and enlightened civili&ation virtually unlimited. "tis put forward as a prescription for attaining a creative, progressive, e(citing and intellectually robustcommunity. "t contemplates a mode of life that, through encouraging toleration, skepticism, reason andinitiative, will allow man to reali&a